How Technology Broke Privacy

One of the greatest challenges of living in the future is that it mostly looks just like the present. We have self-driving cars, commercial spaceflight, powerful computers in our pockets, and a vast, always-accessible online encyclopedia that contains the rough outline of the entirety of human knowledge. Just two decades ago, most of these would have been the stuff of science fiction, but, on a personal level, today feels much like yesterday, which feels much like last month, which feels much like last year. This is the nature of technological advancement—there are few things so extraordinary that time cannot make them ordinary. And so scientists and engineers toil on, and the march of innovation ticks along; it is only years later that we marvel at how much everything has changed.

Attorneys, and especially litigators, are uniquely vulnerable to the shock that arises when the future hits the present. Consider the one constant in any litigation: citations to precedent. Precedent looks backward, trying to connect the present circumstances to past rulings. But by definition, innovation is made of things that haven’t happened yet. While it may be easier for attorneys to remain within the comfortable boundaries of precedent, it is vital to recognize that at some point empirical reality diverges from history and becomes something qualitatively new. This is especially true in cases that involve technology: Cars are more than fast horses, atomic bombs are more than really big cannons, and computational cryptography is more than a room full of mathematicians. And privacy in the modern world is inextricable from its technological underpinnings.